Eminent Domain

Andrew Cohen is upset with Chief Justice John Roberts over some recent comments about the confirmation process. After a lengthy paragraph proclaiming his pro-Roberts cred, Cohen chastises the Chief for a recent statement at the University of South Carolina law school...

...that the Senate shouldn't take as long as it does to confirm members of the Supreme Court. "I certainly think they're too long, four or five days," he reportedly told the students who had assembled to watch the Boy Wonder preside over a "moot court" competition at the school... "It does wear on you a little bit," the Chief Justice added.

Now Cohen gets really judgmental. "Shame on the Chief Justice," he says. He's ready to place some blame about the sorry state of judicial confirmation hearings too...

[T]he most direct reason why judicial confirmation hearings often take way longer than they ought to, is because the candidates themselves simple aren't willing to be candid in any way about their political and legal leanings. John Roberts' performance last September was stunning-- mostly because he mastered the art of saying absolutely nothing in 743 different ways. That's nobody's fault but his own. Had he been candid with the Committee, had he answered questions directly and without hiding behind the "I can't talk about this because one day I might have to decide it," Roberts' confirmation could have been only slightly longer than that of Kennedy-appointee Byron "Whizzer" White, who stayed before the Committee just long enough for a cup of coffee in 1962.

Personally, I think this is a crock. Given an ample record based on a judicial and/or legal career, it isn't hard to figure out the legal leanings of a nominee. I don't know how anyone could look at Roberts' career (clerkship for Justice Rehnquist, special assistant to the Attorney General in the Reagan administration, associate counsel to the president again in the Reagan administration, judicial nominations and eventually an appointment under both Bush administrations) and not see that he's a conservative.

I think that the people who bemoan the lack of candid answers by nominees are being disingenuous. They really just care about getting an answer that they can use to kill the nomination. This was one of my problems with Senator Kennedy's criticisms about the process. Senators in the opposing party want a smoking gun statement ("I will overturn Roe," or "I will impose gay marriage.") that can be used against the nominee. It's just a big gotcha game that has little if anything to do with a substantive examination of the nominee's views.

Given a nominee that lacks a strong, substantive record (like Harriet Miers), I would be much more sympathetic to Cohen's complaints. However, I don't that any of the contemporary nominees who made it, Alito, Roberts, Breyer, or Ginsburg, lacked that ample record.

Cohen does make a point about the confirmation process that I have made in the past...

Part of the problem, as I've written before, is the inability of Committee members to pay attention long enough to bore in on a particular topic and actually listen to what the nominee says when answering a question. All too often, the Senators speak to themselves, or to their constuents, as if there is no one else in the room, much less a Supreme Court-nominee who is more or less held captive until the process is over.

Very few Senators engage in anything that comes close to a real examination of legal issues. They ask stand alone questions, usually with no follow up, that have obviously been written by some staffer or law professor. Some Senators (Biden, I'm looking in your direction) give long winded speeches, proclaiming their views on the Constitution and policy issues. Meanwhile, the nominee sits quietly, hands folded, waiting for some question, ANY question.

I have a modest proposal (that may or may not be Swiftian, I'm not sure yet). We're going to give the Senate one more shot. They get to have another confirmation hearing, as they have in the past, for the next Supreme Court nominee. If they can't put together a passable, respectable performance, then that's it. No more nominee testimony at confirmation hearings. The Senators can analyze the nominee's record and career, hear testimony from experts and witnesses, and debate the merits of the nominee.

Cohen made a reference to Justice Byron White's confirmation hearing. It lasted 15 minutes and consisted of 8 questions. Nominees in the past have testified less or not at all. This lack of a marathon question and answer session had very little effect on the quality of the nominees. For instance, Justice White was an exceptional jurist and widely respected by members of both political parties, no circus-like hearing necessary.